COURT OF CHANCERY
OF THE
STATE OF DELAWARE
MORGAN T. ZURN LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
June 1, 2020
Peter B. Ladig, Esquire Tyler J. Leavengood, Esquire
Jason C. Jowers, Esquire Seth R. Tangman, Esquire
Bayard, P.A. Potter Anderson & Corroon LLP
600 North King Street, Suite 400 1313 North Market Street, 6th Floor
Wilmington, DE 19801 Wilmington, DE 19801
RE: DLO Enterprises, Inc. v. Innovative Chemical Products Group, LLC,
C.A. No. 2019-0276-MTZ
Dear Counsel:
I write regarding Counterclaim Plaintiffs’ January 16, 2020, Motion for
Disposition of Privilege Dispute (the “Motion”).1 In the Motion, Counterclaim
Plaintiffs Innovative Chemical Products Group, LLC and ICP Construction, Inc.
(collectively, “Buyers”) request an order compelling Counterclaim Defendants DLO
Enterprises, Inc., 301 L&D, LLC, and Daniel and Leane Owen (collectively, the
“Owen Sellers,” and with the entities, “Sellers”) to produce unredacted copies of
certain documents and an order clarifying privilege was waived over other
documents in Buyers’ possession. For the following reasons, the Motion is denied
in part and remains under advisement in part pending supplemental briefing.
1
Docket Item (“D.I.”) 74.
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I. Background
This action addresses Buyers’ acquisition of substantially all of the assets of
Arizona Polymer Flooring, Inc. (“Target”) via an Asset Purchase and Contribution
Agreement, dated January 17, 2018, by and among Buyers, Sellers, and Target (the
“Purchase Agreement”).2 Buyers’ operating entity for the acquired assets is Arizona
Polymer Flooring, LLC (“BuyerCo”). Following the execution of the Purchase
Agreement, Target was renamed DLO Enterprises, Inc. (“DLO”).
The year before the Purchase Agreement, Target developed and sold a certain
line of adhesive products that accounted for approximately $1.8 million in sales, but
suffered from defects.3 The parties dispute who bears the financial responsibility for
defective products that were sold pre-Purchase Agreement, but that were returned
post-Purchase Agreement. Buyers assert Sellers knew of the products’ problems
and knowingly misrepresented that Target’s financial statements contained no
undisclosed liabilities and that the products met certain quality and workmanship
standards.4
2
Id., Ex. A [hereinafter “Purchase Agreement”].
3
Id., Ex. B.
4
Purchase Agreement §§ 3.4(c), 3.17.
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Sellers filed a Verified Complaint on April 10, 2019, and Buyers filed an
Answer and Verified Counterclaims on May 6. Buyers issued their First Set of
Requests for Production of Documents to Sellers on July 25 (the “Requests”).5 A
dispute arose regarding the privilege associated with various documents responsive
to the Requests, as well as emails between the Owen Sellers and counsel on email
accounts Buyers acquired through the asset purchase. The parties met and conferred
multiple times regarding the privilege issues, but were unable to resolve them. 6 The
Motion followed. The parties fully briefed the Motion by February 14. On February
27, I heard argument and took the matter under advisement.
Buyers seek to compel the production of two categories of responsive
privileged documents:
(1) Documents reflecting communications between the [Sellers] and
their former attorneys at Boyer Bohn, P.C., who represented them in
the Acquisition, which the [Sellers] have collected and produced in
redacted form based on assertions of privilege in this litigation (the
“Category One Documents”);
(2) Documents reflecting communications between the [Sellers] and
Boyer Bohn, P.C., which [Buyers are] currently in possession of
because these documents were left in [Buyers’] email accounts (the
“Category Two Documents”).7
5
D.I. 74, Ex. N.
6
Id., Ex. O–P.
7
Id. ¶ 9.
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The Category One Documents are a subset of Sellers’ pre-closing deal
communications that Sellers produced to Buyers in this litigation. Sellers produced
the Category One Documents in response to the Requests relating “to the sale of the
assets and the negotiation of the asset purchase agreement.”8 They did so in redacted
form based on attorney-client privilege, and now seek to protect those redacted
portions as privileged. Buyers seek unredacted versions of the Category One
Documents, contending that Sellers’ pre-closing privilege passed to Buyers by
operation of Delaware law, and that Buyers also purchased the right to waive
privilege over Sellers’ deal negotiations via the Purchase Agreement. Buyers do not
8
D.I. 112 at 10. Buyers have varied which documents they seek to compel as Category
One Documents, at times focusing more heavily on documents relating to Assets and
Inventory (as defined in the Purchase Agreement and addressed below) than negotiation of
the Purchase Agreement itself. Compare D.I. 74 ¶ 12 (“The majority of these documents
likely concern the sale of APF’s Assets to ICP, including the defective ‘Inventory.’”), and
D.I. 112 at 11 (“But they produced [the Category One Documents] in redacted fashion so
that we can see the other side. We’re not sure how many have been withheld entirely on
the basis of privilege because we haven’t produced our privilege logs. But any
communications related to the negotiation of the APA is what we’re seeking in the
Category 1 documents.”), with D.I. 74 at ¶ 9 (defining Category One Documents as
documents “produced in redacted form”), and D.I. 74 at 15 (“Based on the foregoing, ICP
respectfully requests an Order compelling the [Owen Sellers] to produce unredacted copies
of Category One Documents . . . .”), and D.I. 91 at 9 (same). At argument, Buyers
confirmed they only seek to compel deal communications about the asset sale that were
produced in redacted form in response to the Requests. D.I. 112 at 6–7, 10 (“I think the
order could just say anything that is related to the sale of the assets and the negotiation of
the asset purchase agreement should be produced.”). I take this as the most accurate
representation of the Category One Documents Buyers seek.
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contend that Category One Documents remained on the email accounts that were
transferred to Buyers under the Purchase Agreement.
The Category Two Documents consist of 48 pre-closing communications and
28 post-closing communications between the Owen Sellers and their counsel on
email accounts transferred to Buyers in the transaction.9 Post-closing, Daniel Owen
continued to use his Buyers email account to communicate with attorneys;
accordingly, those emails have always been in Buyers’ possession.10 Sellers seek to
protect the Category Two Documents as privileged. Buyers contend Sellers waived
any privilege over the Category Two Documents when they transferred Target’s
email accounts containing pre-close emails to Buyers, and when the Owen Sellers
continued to use them to communicate with counsel post-close. In support, Buyers
contend the Owen Sellers did not have an expectation of privacy when they used the
email, both before and after the transfer.
Thus, Buyers seek the two categories under two different privilege waiver
doctrines. I first consider whether the right to waive privilege over the Category
One Documents passed to Buyers by law or contract. Then I consider whether
Sellers waived privilege over the Category Two Documents.
9
See D.I. 100.
10
D.I. 74 ¶ 24.
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II. Analysis
Delaware has long recognized that the attorney-client privilege “protects the
communications between a client and an attorney acting in his professional capacity
where the communications are intended to be confidential, and the confidentiality is
not waived.”11 Delaware Rule of Evidence 502 limits the attorney-client privilege
to “confidential communications” between a lawyer and client for the purposes of
facilitating legal services.12 The attorney-client privilege “extends to a
(1) communication, (2) which is confidential, (3) which was for the purpose of
facilitating the rendition of professional legal services to the client, (4) between the
client and his attorney.”13 “The burden of establishing that otherwise discoverable
information is privileged rests ‘on the party asserting the privilege.’” 14 Sellers claim
attorney-client privilege over both categories of documents.
11
Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992).
12
D.R.E. 502(b).
13
Moyer, 602 A.2d at 72 (quoting Ramada Inns, Inc. v. Dow Jones & Co., Inc., 523 A.2d
968, 970 (Del. Super. 1986)).
14
In re Oxbow Carbon LLC Unitholder Litig., 2017 WL 959396, at *4 (Del. Ch.
Mar. 13, 2017).
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A. Category One Documents
With respect to the Category One Documents, the parties dispute whether in
the Purchase Agreement or by operation of law, Buyers purchased the right to waive
Sellers’ privilege over pre-close deal communications. To address this issue, both
parties looked to common law addressing privilege in a merger.15 In Great Hill
Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, then-Chancellor Strine
established a baseline rule for attorney-client privilege in the merger context.16
Great Hill addressed an issue of first impression: whether Section 259 of the DGCL
(which provides that following a merger, “all property, rights, privileges, powers and
franchises, and all and every other interest shall be thereafter as effectually the
property of the surviving or resulting corporation”) includes attorney-client privilege
and communications regarding merger negotiations.17
The Court determined that absent “an express carve out, the privilege over all
pre-merger communications—including those relating to the negotiation of the
15
Buyers also argue that under the “practical consequences test,” as outlined in Soverain
Software LLC v. Gap, Inc., 340 F. Supp. 2d 760, 763 (E.D. Tex. 2004), privilege transferred
to the Buyers under the Purchase Agreement. D.I. 74 ¶¶ 21–22. Neither party identified a
Delaware case, applying Delaware law, that adopted the practical consequences test. I
decline to do so today.
16
Great Hill Equity P’rs IV, LP v. SIG Growth Equity Fund I, LLLP, 80 A.3d 155 (Del.
Ch. 2013).
17
Id. at 156 (quoting 8 Del. C. § 259).
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merger itself—passed to the surviving corporation in the merger, by plain operation
of clear Delaware statutory law under § 259 of the DGCL.”18 “[T]he answer to any
parties worried about facing this predicament in the future is to use their contractual
freedom in the manner shown in prior deals to exclude from the transferred assets
the attorney-client communications they wish to retain as their own.”19 In Great
Hill, “the Seller did not carve out from the assets transferred to the surviving
corporation any pre-merger attorney-client communications,” and the Court
determined it would “not unilaterally read such a carve out into the parties’
contract.”20
Vice Chancellor McCormick recently reinforced this principle in Shareholder
Representative Services LLC v. RSI Holdco (“RSI Holdco II”). She determined the
sellers in a merger heeded Great Hill’s advice and successfully “used their
contractual freedom to secure a provision in the merger agreement, which preserved
their ability to assert privilege over pre-merger attorney-client communications.”21
RSI Holdco II illustrates the importance of explicitly and clearly contracting for the
18
Id. at 162.
19
Id. at 161.
20
Id. at 161–62.
21
S’holder Representative Servs. LLC v. RSI Holdco, 2019 WL 2290916, at *1 (Del. Ch.
May 29, 2019).
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treatment of pre-closing privileged communications that would otherwise be
transferred to a purchaser via merger under Section 259 and Great Hill.
But Section 259 and Great Hill’s interpretation of it do not apply here, as this
case centers on an asset purchase, not a merger. Then-Chancellor Strine
acknowledged as much in Great Hill when distinguishing Postorivo v. AG Paintball
Holdings, Inc., an asset purchase case in which the Court applied
New York law to an asset purchase agreement that excluded certain
assets, rather than a merger that included all assets, and the parties had
agreed that under the specific contractual terms of their transaction, the
seller retained the attorney-client privilege over communications
relating to the negotiation of the transaction . . . . Postorivo did not
even cite § 259 of the DGCL.22
He also characterized Great Hill’s question presented as “an issue of statutory
interpretation in the first instance.”23 Mergers governed by statute, which
22
Great Hill, 80 A.3d at 158–59 (distinguishing Postorivo v. AG Paintball Hldgs., Inc.,
2008 WL 343856 (Del. Ch. Feb. 7, 2008)).
23
Id. at 156. Buyers argue the application of Great Hill is not limited to mergers because
the case upon which then-Chancellor Strine relied, Commodity Futures Trading Comm’n
v. Weintraub, 471 U.S. 343 (1985), did not involve a merger. D.I. 91 at 6–7. Although
Weintraub involved bankruptcy and a debtor’s trustee, a fuller review of Weintraub
undermines Buyers’ argument. In briefing, Buyers excerpt certain language from
Weintraub in support of their position. The full text surrounding Buyers’ excerpt states:
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automatically transfer “all property, rights, privileges, powers and franchises,”24 are
distinct from asset purchase transactions governed by agreements, which enumerate
the assets being sold. In this case, we must look to the Purchase Agreement, not a
statute, to determine if Buyers purchased certain assets and privileges.
In addition to their different sources of governance, mergers and asset
purchases present practical differences. Unlike a merger, in an asset purchase
transaction, the selling entity is not extinguished by or subsumed within the
purchasing entity.25 The seller still exists, holding any assets that were not
purchased, together with related privileges.
The parties also agree that when control of a corporation passes to new
management, the authority to assert and waive the corporation’s attorney-
client privilege passes as well. New managers installed as a result of a
takeover, merger, loss of confidence by shareholders, or simply normal
succession, may waive the attorney-client privilege with respect to
communications made by former officers and directors. Displaced managers
may not assert the privilege over the wishes of current managers, even as to
statements that the former might have made to counsel concerning matters
within the scope of their corporate duties.
Weintraub, 471 U.S. at 349. Unlike the Weintraub transaction and the Great Hill merger,
an asset purchase, by its nature, preserves the target as an independent entity. The asset
purchase underlying this case, which transferred assets from one entity to another, is
distinct from the changes of management or control of the same corporation discussed in
Weintraub and Great Hill.
24
8 Del. C. § 259.
25
See 8 Del. C. § 259(a) (“When any merger or consolidation shall have become effective
under this chapter, for all purposes of the laws of this State the separate existence of all the
constituent corporations, or of all such constituent corporations except the one into which
the other or others of such constituent corporations have been merged, as the case may be,
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[I]t makes more sense for [Sellers] to hold the attorney-client privilege
for the discrete and segregable assets and liabilities explicitly reserved
for them under the APA. Imagine the impracticality of a contrary
result: [Sellers] would have to prosecute . . . and defend an excluded
liability without the ability to assert or waive the attorney-client
privilege for communications related to those matters. Instead,
[Buyers] would be the only entit[ies] with that authority, and it
foreseeably could have interests adverse to [Sellers].26
In keeping with this reasoning, the parties here concede this litigation is an Excluded
Liability under the Purchase Agreement; therefore, the privilege for this litigation
remains with Sellers.27
In addition, as recognized in Postorivo, the parties to an asset purchase are in
an adversarial relationship.28 The target company has independent rights that are
adverse to the buyer’s rights.29 If an asset purchase breaks down, the parties to the
agreement will be forced to litigate. In view of that very real risk, Postorivo
suggests, and I believe, that the default permits each party to retain the privilege
attached to its position in the asset purchase relationship. Indeed, here, DLO
shall cease and the constituent corporations shall become a new corporation, or be merged
into 1 of such corporations, as the case may be . . . .”).
26
Postorivo, 2008 WL 343856, at *8. While Postorivo applied a New York standard that
does not govern here, its observations are astute and applicable.
27
D.I. 112 at 6–7.
28
Postorivo, 2008 WL 343856, at *6.
29
Id.
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continues to exist, with fewer assets than it held prior to the APA when it was known
as Arizona Polymer Flooring, Inc. And, in fact, DLO is litigating against Buyers
regarding the negotiation of the APA. Privilege regarding an asset purchase
agreement and associated negotiations does not pass to the purchaser by the default
operation of any law, but rather, remains with the seller unless the buyer contracts
for something different.
While Section 259’s default as explained in Great Hill and RSI Holdco II does
not apply in the asset purchase context, another lesson from those cases does: parties
must explicitly bargain for a deviation from the baseline rule governing pre-closing
privilege. In the asset purchase context, the seller will retain pre-closing privilege
regarding the agreement and negotiations unless the buyer clearly bargains for
waiver or a waiver right. Here, Buyers failed to explicitly secure pre-closing
privilege waiver rights relating to the negotiation of the Purchase Agreement. Where
Buyers did not clearly secure in the Purchase Agreement itself the rights they seek
this Court to enforce, the Court will not unilaterally read such rights into existence.30
Accordingly, Sellers retain privilege with respect to such communications.
30
See id. (“Moreover, no provision of the APA provides that [Sellers] sold or transferred
their respective privileges and rights concerning communications with counsel related to
the APA or the negotiations associated with the Agreement.”).
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In fact, the Purchase Agreement provides that Buyers did not obtain the right
to waive privilege over Sellers’ deal communications. Section 8.9 of the Purchase
Agreement gives Buyers waiver rights over the privilege relating to Assets and
Assumed Liabilities transferred to Buyers. It provides, “The parties intend that, at
all times after the Closing, [Buyer] will have the right in its discretion to assert or
waive any attorney work-product protections, attorney-client privileges and similar
protections and privileges relating to the Assets and Assumed Liabilities.”31 The
question presented by the Motion is therefore whether deal communications relate
to Assets and Assumed Liabilities.
31
On November 13, 2017, Buyers’ counsel sent Sellers’ counsel an initial draft of the
Purchase Agreement containing Section 8.9. D.I. 74, Ex. Q. Sellers’ counsel returned a
redlined copy of the Purchase Agreement striking Section 8.9. Id., Ex. R. Buyers then
reinserted Section 8.9. Id., Ex. S. Thereafter, Section 8.9 remained in the additional drafts
the Parties exchanged and was included in the final executed version. Buyers argue that
Section 8.9 constitutes an intentional privilege waiver under Delaware Rule of Evidence
510(a). D.I. 74 ¶ 17. Rule 510(a) provides, “[a] person waives a privilege conferred by
these rules or work-product protection if such person or such person’s predecessor while
holder of the privilege or while entitled to work-product protection intentionally discloses
or consents to disclosure of any significant part of the privileged or protected
communication or information.” D.R.E. 510(a). I do not find that Section 8.9 constituted
a consent to disclosure of any significant part of the privileged communications at issue in
this action. As explained below, Section 8.9 is not a waiver as contemplated under Rule
510(a) for the pre-closing deal communications.
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Section 1.1 defines Assets:
Sellers will sell, convey, assign, transfer and deliver to Purchaser, and
Purchaser will purchase and acquire from Sellers free and clear of any
Liens, all of Sellers’ right, title and interest in all of the properties and
assets of Sellers, excluding only the Excluded Assets and the
Contributed Assets . . . .32
Section 1.2 defines Excluded Assets “[n]otwithstanding the foregoing Section 1.1”
to include “the [Sellers’] rights under or pursuant to this Agreement and agreements
entered into pursuant to this Agreement.”33
Section 1.1 goes on to enumerate Assets. Section 1.1(c) includes “all
files . . . including without limitation quotation and purchase records and all books,
records, ledgers, files, document, correspondence, lists, studies, and reports and
other printed or written materials with respect to the Assets and Business.”34 Section
1.1(d) includes “all inventory, wherever located, including all raw materials, spare
parts and all other materials and supplies to be used in the production, service and
repair of goods by the Company including without limitation the inventory set forth
on Schedule 1.1(d) (the “Inventory”).”35
32
Purchase Agreement § 1.1 (emphasis added).
33
Id. § 1.2(b).
34
Id. § 1.1(c).
35
Id. § 1.1(d).
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Buyers stretch the provisions of the Purchase Agreement to argue they
acquired the right to waive privilege over Sellers’ deal communications. Buyers try
to include deal communications under Section 8.9’s privilege waiver by asserting
those communications are Assets enumerated in Sections 1.1(c) and (d). Buyers
argue that the defective product line falls under the definition of Inventory and is
therefore an Asset; speculate that the majority of deal communications likely
concern the sale of Assets; point out that they acquired all pre-closing
communications “with respect to Assets” under Section 1.1(c); and contend the
Owen Sellers’ privileges are not among the Excluded Assets.36
But Buyers have failed to identify a clear contractual right to the privilege
over deal communications.37 Section 8.9’s privilege waiver for Assets does not
reach deal communications because Sellers’ rights under or pursuant to the Purchase
Agreement were carved out as an Excluded Asset under Section 1.2.38 Under that
Section, Excluded Assets include Sellers’ “rights under or pursuant to this
36
D.I. 74 ¶ 12; D.I. 91 at 4.
37
Therefore, Buyers must demonstrate the privilege over deal communications relates to
an Asset. At argument, when pressed, Buyers did not pursue the theory that “Inventory”
included sold products. D.I. 112 at 19–20. Buyers have offered no other means to
categorize communications about the defective products or the purchase agreement as
Assets.
38
See Purchase Agreement §§ 1.1, 1.2.
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Agreement.” In Postorivo, this Court concluded that where “Excluded Assets”
included “[a]ll rights of the Sellers under this Agreement and all agreements and
other documentation relating to the transactions contemplated hereby,” the sellers
retained privilege over communications related to the asset purchase agreement
negotiations.39 Because Sellers’ rights under the Purchase Agreement are an
Excluded Asset, Buyers did not purchase documentation or privileges relating to
those rights. Under the language of the Purchase Agreement as informed by
Postorivo, Buyers did not contract for the right to assert a privilege waiver over
Sellers’ deal communications.40 The pre-closing privilege over deal
communications pertains to an Excluded Asset and therefore stays with Sellers.
The Motion is denied as to the Category One Documents.
B. Category Two Documents
The Category Two Documents consist of 48 pre-closing documents and 28
post-closing documents.41 These are emails between the Owen Sellers and their
attorneys on email accounts transferred to Buyers as part of the acquisition, and so
39
Postorivo, 2008 WL 343856, at *6, n.25.
40
In 2008, Vice Chancellor Parsons stated in Postorivo, “I am mindful that the parties
cited, and my own research revealed, very little case law directly addressing the issue
presented here.” 2008 WL 343856, at *8. In this area, at least, not much has changed since
2008: Postorivo still appears to be the only case taking up these issues.
41
See D.I. 100.
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are currently in Buyers’ possession. Buyers argue that by allowing the emails to fall
into Buyers’ hands, the Sellers waived any attorney-client privilege over these
documents.42
The parties focus on the confidentiality of the Category Two Documents.
They ask me to evaluate that confidentiality by applying In re Information
Management Services, Inc. Derivative Litigation, which addressed confidentiality
through the lens of an employee’s reasonable expectation of privacy in her work
email.43 In that case, “[f]or guidance, the Court looked to and adopted the United
States Bankruptcy Court for the Southern District of New York’s reasoning in [In re
Asia Global Crossing, Ltd.].”44
I believe Asia Global is the appropriate test for the 28 post-closing
communications with Daniel Owen while he was Vice President of BuyerCo.45 It is
less clear to me that this is the proper test for the confidentiality of the 48 pre-closing
communications as against Buyers, which were written when Buyers did not have
access to Target’s computers or Target’s employees’ email accounts. I will start by
42
As with the Category One Documents, Buyers did not acquire the privilege associated
with the Category Two Documents under the Purchase Agreement or by operation of law.
43
In re Info. Mgmt. Servs., Inc. Deriv. Litig., 81 A.3d 278 (Del. Ch. 2013).
44
Lynch v. Gonzalez, 2019 WL 6125223, at *5 (Del. Ch. Nov. 18, 2019).
45
D.I. 1 ¶ 29.
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addressing the post-closing communications under Asia Global and then turn to the
pre-closing communications.
“Although e-mail communication, like any other form of communication,
carries the risk of unauthorized disclosure, the prevailing view is that lawyers and
clients may communicate confidential information through unencrypted e-mail with
a reasonable expectation of confidentiality.”46 Four factors inform whether an
employee has a reasonable expectation of privacy, and thus confidentiality, in her
work email:
(1) does the corporation maintain a policy banning personal or other
objectionable use, (2) does the company monitor the use of the
employee’s computer or e-mail, (3) do third parties have a right of
access to the computer or e-mails, and (4) did the corporation notify the
employee, or was the employee aware, of the use and monitoring
policies?47
The first Asia Global factor focuses “on the nature and specificity of the
employer’s policies regarding email use and monitoring” and weighs in favor of
production “when the employer has a clear policy banning or restricting personal
use, where the employer informs employees that they have no right of personal
privacy in work email communications, or where the employer advises employees
46
In re Asia Glob. Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. Mar. 21, 2005).
47
Id.
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that the employer monitors or reserves the right to monitor work email
communications.”48 “[A]n outright ban on personal use would likely end the
privilege inquiry at the start,”49 but a complete ban is not required.
BuyerCo did not place an outright ban on personal use. But when the post-
closing communications were made, Buyers’ employee handbook (the “Buyers
Handbook”) established that employees did not have an expectation of privacy and,
importantly, that the company reserved the right to access employees’ email
accounts at any time.50 The first factor favors production of post-closing Category
Two Documents created at BuyerCo.
48
Info. Mgmt., 81 A.3d at 288.
49
Id. at 278–88 (quoting United States v. Finazzo, 2013 WL 619572, at *8 (E.D.N.Y.
Feb. 19, 2013)).
50
Buyers look to the ICP Employee Handbook effective January 1, 2017 to govern the
Owen Sellers’ expectation of privacy for post-close communication, and Sellers do not
dispute this is the proper governing document. D.I. 74 ¶ 25; D.I. 85 at 13–14. The Buyers
Handbook “is provided as a guide to the employment policies, practices and benefits of the
ICP Group LLC and all affiliated entities – ICP Construction, Inc., ICP Industrial, Inc., and
ICP Adhesives & Sealants, Inc.” D.I. 78, Ex. W at ICP009805_0004. Buyers Handbook
provides:
The Company’s Electronic Resources and the information, files and data
transmitted by, accessed, received, or stored on them are not private or
confidential and employees and other individuals have no expectation of
privacy in their use. The Company reserves the right to, and in fact does,
inspect, monitor, track, review, retain disclose . . . all documents, email and
other electronic communications . . . .
Id. at ICP009805_0012.
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The second factor focuses “on the extent to which the employer adheres to or
enforces its policies and the employee’s knowledge of or reliance on deviations from
the policy.”51
If an employer has clearly and explicitly reserved the right to monitor
work email, then the absence of past monitoring or a practice of
intermittent or as-needed monitoring comports with the policy and does
not undermine it. In that setting, “evidence of actual monitoring would
make an expectation of privacy even less reasonable.”52
Although the Buyers Handbook includes monitoring provisions, Buyers have not
shown that BuyerCo actually engaged in email monitoring. As such, I treat the
second factor as neutral for the post-closing Category Two Documents.53
In a work email case, the third factor, which asks whether “third parties have
a right of access to the computer or e-mails,” is largely duplicative of the first and
second factors.54 “[B]y definition the employer has the technical ability to access
the employee’s work email account.”55 “The third factor is most helpful when
analyzing webmail or other electronic files that the employer has been able to
51
Info. Mgmt., 81 A.3d at 289.
52
Id. at 289–90 (quoting United States v. Finazzo, 2013 WL 619572, at *7 (E.D.N.Y.
Feb. 19, 2013)).
53
Id. at 290 (“[B]ecause IMS never actually engaged in email monitoring, I treat the factor
as neutral.”).
54
Asia Glob., 322 B.R. at 257.
55
Info. Mgmt., 81 A.3d at 290.
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intercept, recover, or otherwise obtain,” and considers what the employer had to do
to obtain electronic files, “such as whether the employer used forensic recovery
techniques, deployed special monitoring software, or hacked the employee’s
accounts or files” due to password-protection, encryption, or deletion.56 Here, for
the post-closing communications created at BuyerCo, this is a straightforward work
email case: Daniel Owen was employed by BuyerCo post-closing. The third factor,
like the first, favors production of the post-closing documents.
The final factor, regarding an employee’s knowledge of the use and
monitoring policies, favors the existence of a reasonable expectation of privacy if
the employee lacked knowledge of the policies. “If the employee had actual or
constructive knowledge of the policy, then this factor favors production because any
subjective expectation of privacy that the employee may have had is likely
unreasonable.”57 Importantly, “[d]ecisions have readily imputed knowledge of an
employer’s policy to officers and senior employees.”58
56
Id. at 290–91.
57
Id. at 291–92.
58
Id. at 292.
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The Owen Sellers argue they were never provided the Buyers Handbook and
were never made aware BuyerCo could monitor their emails.59 This argument is
refuted by the fact that at the bottom of numerous emails the Owen Sellers sent,
BuyerCo applied a disclaimer stating that “messages sent to and from employees in
our organization may be monitored.”60 The fourth factor therefore favors production
as to the post-closing Category Two Documents.
For post-closing Category Two Documents, three of the four Asia Global
factors point towards production and one is neutral. But my inquiry does not end
here. In Information Management, the Court recognized a potential statutory
override of the Asia Global analysis. “If a controlling jurisdiction has a statute on
the confidentiality of work emails, that statute may alter the common law results of
the Asia Global analysis.”61 The parties have failed to brief this portion of the
analysis. To complete my analysis, I request the parties submit supplemental
briefing on a potential statutory override.62 The Motion remains under advisement
59
D.I. 86 ¶¶ 5–8.
60
D.I. 91, Ex. Y.
61
Lynch, 2019 WL 6125223, at *6.
62
Such supplemental briefing is only necessary if the parties continue to spar over the 28
post-closing communications. At argument, Sellers’ counsel explained that he believed
the post-close emails in Category Two are “. . . going to be cleanup from the transaction.
So I’m not sure . . . there’s going to be, really, a whole lot that we would fight about on
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as to the post-closing Category Two Documents pending supplemental briefing or a
stipulation.
As to the pre-closing communications in Buyers’ possession, Postorivo
indicates that the proper test may be one of inadvertent production, rather than solely
a consideration of the employees’ expectation of privacy when working for Target.63
It seems to me that the proper analysis may not focus exclusively on the Owen
Sellers’ expectation of privacy in their email accounts while employed by Target,
that issue . . . the bulk . . . would be just ministerial and implementation effects of the asset
purchase agreement.” D.I. 112 at 41–42.
63
Postorivo, 2008 WL 343856, at *4, n.13 (citing D.R.E. 510) (“Defendants do argue,
however, that to the extent any such privileged communications and documents continue
to reside on KEE Action computers and servers, Plaintiffs have waived the privilege. As I
stated at argument, there has been no waiver of privilege here. Specifically, the
circumstances do not support a reasonable inference that Plaintiffs deliberately and
voluntarily relinquish the right to assert their claims of privilege by virtue of the way
Campo and others conducted their affairs after the APA closed.”); Russell C. Silberglied,
Who Owns Privileged E-Mails in a §363 Sale Case? Is Ownership Waived When the
Debtor’s Computer Servers Are Sold?, 28-FEB Am. Bankr. Inst. J. 46 (“In a footnote, the
court [in Postorivo] rejected an argument that the sellers waived all privilege that the sellers
retained because the documents were actually in the buyer’s possession on the transferred
computer server. Using language suggestive of the ‘inadvertent production’ standard for
producing paper documents in litigation, the court held that no ‘reasonable inference’ could
be drawn that [the Sellers] ‘deliberately and voluntarily’ surrendered attorney-client
privilege.”); see also In re Hechinger Inv. Co. of Del., 285 B.R. 601, 615 (D. Del. 2002)
(“Under this scenario [where a liquidating trust that controlled privilege, following debtor’s
bankruptcy filing, waited several months after adversity arose to assert privilege over
communications between corporate counsel and the debtor’s officers and directors], clearly
plaintiff’s efforts to preserve any privilege have been inadequate, and any privilege has
been waived.”).
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but may also address whether Sellers deliberately and voluntarily relinquished the
right to assert their claim of privilege when they transferred the email accounts to
Buyers. The terms of the Purchase Agreement may also be informative here.
It also seems that the proper analysis should consider who holds the privilege
over the communications. The Asia Global inquiry focuses on an individual
employee’s privilege to the exclusion of her employer, which may be compromised
by the employer’s access to the employee’s communications. Here, Sellers may
hold the privilege over the Owen Sellers’ emails, such that Target’s access to the
Owen Sellers’ emails would not destroy any relevant confidentiality.
To complete my analysis, I request supplemental briefing on the proper test
to assess whether Sellers waived privilege of the pre-closing deal communications
that remain on email accounts transferred to Buyers under the Purchase Agreement.
The Motion remains under advisement as to the pre-closing Category Two
Documents pending supplemental briefing or a stipulation.
As a final note, I cannot ignore Buyers’ counsel’s inappropriate review of the
content of the potentially privileged Category Two Documents in their possession.
Upon realizing Buyers possessed potentially privileged documents, counsel should
have abstained from reviewing their content, and instead segregated the documents,
perhaps by using metadata, pending resolution of the privilege dispute. Counsel
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should not have viewed these documents prior to resolving the privilege issues
associated with them. Upon resolution of the Motion, Sellers may file a letter
outlining the relief they deem appropriate to rectify this wrong as it relates to the
Category Two Documents if they, or any subset thereof, are found to be privileged.
III. Conclusion
The Motion is denied as to the Category One Documents. The Motion
remains under advisement as to (i) the pre-closing Category Two Documents
pending supplemental briefing on the proper test to assess the privilege of these
communications and (ii) the post-closing Category Two Documents pending
supplemental briefing on a potential statutory override of the Asia Global analysis.
To the extent an order is required to implement this decision, IT IS SO
ORDERED.
Sincerely,
/s/ Morgan T. Zurn
Vice Chancellor
MTZ/ms
cc: All Counsel of Record, via File & ServeXpress